H4 EAD: What You Need to Know

The H4 visa is the dependent visas that attaches to the H1B visa. H1B visas are the most common nonimmigrant US work visa available to professionals. Some H4 visa holders are eligible for EAD, an Employment Authorization Document.

In my practice, H1B families have posed similar questions about the nuances of the H4 EAD. I have collected these most “commonly asked questions” and compiled the answers for you.

In this guide, I will explain almost everything you need to know about the H4 EAD. If you have any questions, feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.

Introduction:

 1. How do I apply and qualify for an H4 EAD?

• Importance of an EAD

2. Is premium processing available for H4 EAD?

• An Alternative to Premium Processing: Submit an Expedite Request

3. Can you pursue permanent residency as an H4 visa holder?

4. What are the chances of getting an H4 EAD revoked?

5. Conclusion

1. How do I apply and qualify for an H4 EAD?

Currently, only the dependent family of H1B beneficiaries with an approved I-140, can apply for EADs. An I-140 is an employment immigrant petition. An I-140 serves as the basis for an employment based green card. An approved I-140 also allows H1B holders and their dependents to work beyond the six-years normally imposed on the visa.

H4 status alone does not grant any working privilege. A valid Employment Authorization Document (EAD) is mandatory. This is different form an H1B, principal beneficiary. H1B holders can work with their status alone. They need not apply for an Employment Authorization Document.

Qualified H4s can apply for an EAD by submitting an I-765 application. Mail this in along with the necessary fees to USCIS.

Importance of an EAD

An employer who allows you to work without verifying your documents (such as your social security number and EAD) could be punished. This could come in the form of severe penalties by the Dept. of Labor, IRS, or other government agencies (such as law enforcement). Companies that participate in E-verify may have different requirements. Here, they should have different internal auditing rules and document collection standards. Yet, every employer is encouraged to act as if they will have an I-9 audit tomorrow.

Thus, do not jeopardize your immigration status and your employer’s business by not obtaining your EAD. You should have your EAD in hand before moving forward with employment.

2. Is premium processing available for H4 EAD?

Unfortunately, H4 EADs cannot be premium processed. USCIS rules have recently fluctuated for H1B premium processing availability. Although, this did not extend to H4 benefits. Therefore, as of today, you cannot premium process your H4 EAD.

An Alternative to Premium Processing: Submit an Expedite Request

Due to the lack of premium processing, consider submitting a USCIS expedite request.

What to do:

Step 1: Call USCIS and have your I-797 Receipt Number ready.

• USCIS recommends calling after your I-765 has been pending for at least 75 days. Yet, under exigent circumstances, I have been able to submit this sooner. Be prepared to show the urgency as to why you qualify for an expedited EAD.

• Avoid doing this through the online e-service platform. USCIS’ website will state that your case has not exceeded normal processing time. Therefore, it will bar you from submitting your request.

Step 2: Have evidence prepared as to why you are eligible for an expedite.

• Here, the strongest form of evidence is the hardship to your employer. Your employer will need to show they will suffer if you are unable to work.

• Prepare this evidence by submitting your employer’s detailed declaration. The declaration should state the type of work you perform and why it cannot be fulfilled by anyone else.

Step 3: After you have submitted your request via phone, prepare a follow up.

• Pending on the merits of your request, USCIS may contact you. Here, they will ask you to submit additional evidence to support your expedited I-765. This is where your employer’s declaration, your statement, and any additional evidence you have, would be sent in.

Note that not USCIS will not honor all expedited requests. Nonetheless, communicate frequently with USCIS. Lastly, be prepared to collect strong evidence for your claim. We have seen EAD processing times increase significantly in the last three years. So, the expedite request tool is extremely helpful for our clients.

3. Can you pursue permanent residency as an H4 visa holder?

Yes, you can pursue permanent residency as an H4 holder.

If you qualify for an H4 EAD, your principal H1B holder has an approved I-140. Thus, you are likely on your way to residency anyways. Yet, maybe you would have a more favorable priority date on the visa bulletin. This could be due to your country of chargeability (birth). So, you should still explore obtaining your own I-140 approval.

Again, H1B dependents (H4s) are not allowed to obtain work authorization without the approved I-140. An I-140 is the employment-based petition that is filed to support the foreign national’s green card eligibility.

Fortunately, this is due to the “dual intent” doctrine. Here, H1B holders and their dependents are statutorily permitted to pursue permanent residency.

4. What are the chances of getting an H4 EAD revoked?

If you are on your way to adjusting status - the chances are high. In my practice, the most common termination of H4 EADs occurs when my clients apply for a green card. This is done through an adjustment of status (AOS) application. Adjustments of status are pursued through form I-485.

When filing your AOS application, you are likely in valid nonimmigrant status. Yet, you abandon your valid H4 EAD status upon submitting an application for an adjustment based EAD. Upon receiving this EAD working pursuant to this category, you abandon your H4 EAD. On form I-765, this AOS based EAD category is called (c)(9). Again, this is reserved for AOS pending applicants. When you begin working based on the (c)(9) authorization and category, your H4 EAD is revoked. While this is authorized pursuant to 8 CFR §274.12(c)(9), it is not consistent with H4 requirements.

Keep in mind that there is no mechanism to revert from the lack of valid nonimmigrant status to H4 status without exiting the United States.

There is a common misconception that those with pending adjustments are in valid nonimmigrant status. This is false. Simply because an adjustment applicant is authorized to remain in the United States and accept employment while the application is pending, this does not mean they have valid nonimmigrant status. Valid nonimmigrant status is defined by INA §101(a)(15). Here, you will find a list that does not include a pending adjustment application.

Those with pending AOS applications are defined as being in a “period of authorized stay.” This status is authorized and granted by the Attorney General. It must be distinguished from nonimmigrant status permitted by the Immigration and Nationality Act. Being in a “period of authorized stay” has similar privileges to valid nonimmigrant status. Yet, they are distinguishable pending on your individualized matter.

5. Conclusion

Remember, the H4 EAD does not need to be a complicated process. Know that I am happy to break down legal complexities to work with you and your family. If you have any questions in evaluating your case, please feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.